This is a suit by appellees against appellant to foreclose a vendor's lien and two mechanic's lien contracts on a certain house and lot described in plaintiffs' petition, in Marlin, Falls County, Texas. The plaintiffs were dealers in lumber and builders' material, and the contract was executed by Moreno and his wife, his coappellant, for the lumber and material that went into the erection of the building on the lot in question.
It appears from the facts contained in plaintiff's petition that the property was the homestead of the appellants at the time that the contract for material was executed. The judgment in the trial court was in favor of the plaintiffs for the debts represented by the contracts, and for a foreclosure of the lien on the property in controversy.
The appellants' brief contains assignments of error which assert the proposition that the contract lien foreclosed by the judgment was illegal, because the notes called for in the contract were not acknowledged and recorded, together with the contract. The terms of the written contract fixed a lien upon the property in question to secure the amount of the material furnished, which amount the contract states is evidenced by two certain promissory notes, stating their amount. This written contract, if properly acknowledged, was properly recorded, but the notes called for in the contract, although signed, were not acknowledged and recorded. *Page 72
We overrule these assignments, first, because an acknowledgment and registration of the contract was all that was necessary, if such a lien as evidenced by this contract was required to be recorded as provided for in the statute; second, the contract as sought to be foreclosed between the original parties to it was sufficient of itself, if properly executed, to create a lien upon the homestead without the necessity of its registration.
We also overrule the appellant's third assignment of error. We do not think that the question there raised is well taken.
The court correctly refused the special instructions requested by appellants. The only issue submitted by the trial court, which is complained of in appellant's tenth assignment of error, is as follows:
"The only question submitted to you for your consideration is whether or not Mrs. Lena Moreno acknowledged the instrument introduced in evidence before you bearing date January 23, 1901, before the notary J. M. Jolly. If you believe from the evidence before you that she did not appear before said officer and acknowledge said instrument, you will simply say by your verdict, 'We the jury find that Mrs. Lena Moreno did not appear before J. M. Jolly and acknowledge the contract bearing date January 23, 1901,' and sign the same by your foreman. If you find under the evidence that she did appear before said officer and acknowledge the same, as stated in said certificate, then you will say by your verdict, 'We the jury find that Mrs Lena Moreno did appear before said officer and acknowledge said instrument, as shown by the certificate,' and sign the same by your foreman. You are the exclusive judges of the fact proven, the credibility of the witnesses and the weight to be given to the testimony. In this connection, however, you are charged that in order to find that she did not appear before said officer the evidence must be clearly convincing to your minds that she did not so appear. The burden to establish that fact rests upon the defendants, and unless they have shown to your satisfaction clearly that she did not appear before said officer, you will find, as per instructions above given, that she did so appear and acknowledge said instrument."
This charge is presented under the issues raised by the pleadings and evidence to the effect that the contract creating the lien upon the homestead for the material furnished by the appellees was not acknowledged by the wife, Mrs. Moreno. There is conflicting evidence of both parties upon this issue, and the question here presented is similar to that raised in Wheelock v. Cavitt, 91 Tex. 679. The trial court was correct in placing the burden of proof upon the appellants to establish the fact that Mrs. Moreno's acknowledgment was not in fact taken, and that she did not appear before the officer for that purpose; but the court erred in instructing the jury that the evidence establishing this defense must be clear and convincing, and that it must be clearly shown to the satisfaction of the jury that such fact was established. This issue, like any other that arises in any civil suit, is only necessary to be established by a preponderance of the evidence; and for the error in the charge of the court in this respect, the judgment is reversed and the cause remanded.
Reversed and remanded. *Page 73